Media Two Terms & Conditions of Service.
All services provided by Media Two. (M2) to the Client are subject to the following terms and conditions.
1. Acceptance. A copy of these terms and conditions must be accepted and acceptance noted on the printed proposal by all new clients at the time of submission of work to M2, indicating agreement to and acceptance of these Terms and Conditions.
2. Charges. Charges for web development services to be provided by M2 are defined in the project proposal. All Web site design services require an advance payment of a minimum of twenty five percent of the project proposal total when returning the signed agreement. The remaining seventy five percent of the project proposal total will be due immediately upon completion of the work. The fee will be for the agreed work outlined in our final proposal. The client will be asked to approve site plan, navigation, content and design at agreed stages. If, after such approval, the client makes any changes to the website that affects the navigation of the site, the design or layout of individual pages M2 reserves the right to charge our time at the rate of $150 plus GST per hour.
3. Payment terms Invoices will be provided by M2 upon completion of the work and prior to any deposit due if requested. Final invoices are sent when the website has been completed and uploaded to the internet and are due within 30 days. Accounts that remain unpaid thirty (30) days after the date of the invoice will be assessed a clerical service charge in the amount of five dollars ($5) monthly.
Accounts unpaid thirty (60) days after the date of invoice will be considered in default and as a result, M2 at its discretion, may suspend the account causing termporary removal of the website. Removal of such does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client’s account.
Cheques returned for insufficient funds will be assessed a return charge of $35 and the Client’s account will immediately be considered to be in default until full payment is received. Clients with accounts in default agree to pay M2 reasonable expenses, including attorney fees and costs for collection by third-party agencies, incurred by M2 in obtaining payment.
4. Termination. Termination of services from M2 by the Client must be requested in a written notice and will be effective on receipt of such notice. Notice of Request for change of hosting is required 1 month prior to hosting change. Hosting charges will end 1 month after notification of such. The Client agrees to be responsible for payment for design work completed to the date of first notice of cancellation for payment in full within thirty (30) days.
5. Legal Restrictions. M2’s services may be used for lawful purposes only. Submission, transmission, or maintenance of any information or materials in violation of any state or federal statutes and/or regulations is prohibited. This includes, but is not limited to, material legally judged to be threatening racist or obscene. M2 reserves the right to refuse service to the Client without providing reason or cause.
6. Copyright. All content supplied by the client will be assumed third party copyright free. M2 cannot accept responsibility for any copyright issues arising from improper use of copyrighted images or content.
7. Standard Media Delivery. Website will be designed optimised for 800 x 600 or 1024 x 768 screen resolution and catering for higher. Sites can only be guaranteed to be perfect if viewed on a PC, but every attempt will be made for correct display on an Apple Macintosh using browsers Safari, Opera and FireFox (latest versions) but not the defunct Internet Explorer on the Mac.
No site is guaranteed to be printable without a dedicated printable version of any specific page.
Unless otherwise specified in the project proposal, this Agreement assumes that all text will be provided by the Client in electronic format (ASCII text files or Email or MS Word document delivered via email) if M2 is to insert webpage content. In the case where a Content Management System (CMS) site is produced, M2 will insert some of the page content for free, and the client is to insert the rest, unless a data entry fee is nogotiated, as specified in the project proposal. All graphics will be provided suitable for scanning or electronically in .gif, .jpg or .tiff format.
Additional (to proposal) expenses may be incurred for corrective work, conversion of media or outside facility charges. The scope of the work will be defined by the project proposal.
The proposal will clearly outline what is to be delivered. If any items are missing M2 needs to be informed prior to signing these terms to enable supply of a new proposal with inclusion of missing items. The project proposal quoted amount will not cover any items that have not been specified or are missing from the proposal at the time of proposal acceptance.
Changes to clients business during project timeline which necessitate changes to already created work will incur an extra charge according to time spent at M@ current hourly rate of $154 per hour including GST
8. Design Credit. M2 reserves the right to include a discrete link back to www.mediatwo.com.au from the client's website stating “Site by Media Two” This design credit is to remain on the site unless the editing of the site has been taken over by another party and the design appearance of the site has changed by over 90% from its original look as provided and designed by M2. Media Two must be in acceptance of the removal and notified in event of it’s change so that the site can be removed from the portfolio on the Media Two web site.
9. Intellectual Property The client retains IP of the site. Unless design copyright is signed over to the client, Media Two retains copyright of any design that is created by Media Two, excluding elements formed directly from client’s logo or branding imagery or facets of their corporate identity. The Client can use and re-use the design elements created for the site in an unlimited fashion for the site and any other graphical online internet-displayed purposes only. Styles and designs created in the production of the web site design may not be used in other material for the client’s advertising unless permission is given by M2. An extra design fee will be due for the multiple use of design features. The client accepts that they do not have exclusive rights to any regenerative code used in the development of the web site.
The client agrees to remove any reference to M2 (including the link) should M2 deem the site to no longer be representative of its design style and quality.
10. Right To Pull. By signing this Agreement, the Client agrees to give M2 access to the Client’s installed Web site, (FTP access) and further agrees that M2 shall have the right to alter that site for failure to adhere to item 8 or 9 of these terms or remove from public posting for unresolved and continued failure to adhere to item 3.
11. Post-Placement Alterations. M2 cannot accept responsibility for any alterations caused by a third party occurring to the Client’s pages once uploaded and live. Such alterations include, but are not limited to additions, modifications, or deletions.
12. Indemnity. The Client agrees to indemnify M2 from any and all claims resulting from the Client’s use of M2’s services which cause damage to the Client or a third party, including any direct, indirect or consequential damages, loss of data resulting from delays, non-delivery or interruption in service or for actions resulting from unauthorised hacking into any web site or online database created by us, or from the misuse of any content management system provided by us. The Client acknowledges and agrees that M2 cannot guarantee the absence of service interruptions caused by Acts of God or other circumstances beyond the control of M2.
13. Hosting. Any website hosted by Media Two may never include third party software, or any open source web software. If any client has FTP access to their site and uploads 3rd party software or any kind, Media Two reserves the right to instantly terminate their hosting account. This item is to guard against potential hacking of our hosting server.
Hosting is billed monthly on the first of each month. Payment for the month is required within 2 weeks of issue of the invoice for that month. If a hosting account remains unpaid after one month from date of invoice, Media Two reserves the right to suspend the hosting account until payment is received.
14. General. These Terms and Conditions supersede all previous representations, understandings or agreements. There may be exceptions to these terms specifically outlined in the project proposal. The Client’s signature below constitutes agreement to and acceptance of these Terms and Conditions. M2 reserves the right to change the terms and conditions of the acceptance of future orders for authoring and placement of the Client’s pages. These Terms and Conditions are not negotiable.
15. Governing Law. This Agreement shall be governed by the laws of Australia, which shall claim venue and jurisdiction for any legal motion or claim arising from this Agreement.
Hosting terms:
You indicate acceptance of these terms and conditions of service by placing an order with Media Two Hosting. These terms and conditions will not be varied for individual customers.
1 SOFTWARE LICENCE AND RIGHTS
6.1 If the Customer requires use of software owned by or licensed to Media Two Hosting ("Media Two's software") in order to use the Services, Media Two Hosting grants to the Customer and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use Media Two Hosting Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Customer any right, title, interest or intellectual property rights in Media Two Hosting Software.
6.2 In relation to Media Two's obligations under this Agreement in connection with the provision of the Services, the Customer grants to Media Two Hosting a royalty-free, world-wide, non-exclusive licence to use the Customer Software and all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the website ("the Content"). For the avoidance of doubt, this Agreement does not transfer or grant to Media Two Hosting any right, title, interest or intellectual property rights in the Customer Software or the Content.
6.3 The Customer undertakes that he will not himself or through any third party, sell, lease, license or sublicense Media Two Hosting Software.
6.4 Media Two Hosting may make such copies of the Customer Content as may be necessary to perform its obligations under this Agreement, including back up copies of the Content. Upon termination or expiration of this Agreement, Media Two Hosting shall destroy all such copies of the Content and other materials provided by the Customer as and when requested by the Customer.
7 SERVICE LEVELS AND DATA BACKUP
7.1 Media Two Hosting shall use its reasonable endeavours to make the server and the Services available to the Customer 100% of the time but because the Services are provided by means of computer and telecommunications systems, Media Two Hosting makes no warranties or representations that the Service will be uninterrupted or error-free and Media Two Hosting shall not, in any event, be liable for interruptions of Service or downtime of the server.
7.2 Media Two Hosting carries out data backups for use by Media Two Hosting in the event of systems failure. Media Two Hosting do not provide data restoration facilities for individual customers. Even though every effort is made to ensure data is backed up correctly Media Two Hosting accepts no responsibility for data loss or corruption.
8 ACCEPTABLE USE POLICY
8.1 The website and use of the Services may be used for lawful purposes only and the Customer may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Customer agrees not to:
8.1.1 use the Services or the website in any way to send unsolicited commercial email or "spam", or any similar abuse of the Services;
8.1.2 send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities;
8.1.3 publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights (for the avoidance of doubt this includes licensed software distributed as Warez), via the Services or on the Website;
8.1.4 threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
8.1.5 engage in illegal or unlawful activities through the Services or via the Website;
8.1.6 make available or upload files to the website or to the Services that the Customer knows contain a virus, worm, trojan or corrupt data; or
8.1.7 obtain or attempt to obtain access, through whatever means, to areas of Media Two's network or the Services which are identified as restricted or confidential. This includes leaving your home directory whilst using SSH access to servers.
8.1.8 operate or attempt to operate IRC bots or other permanent server processes.
10 WARRANTIES
10.1 The Customer warrants and represents to Media Two Hosting that Media Two's use of the Content or the Customer Software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Customer has the authority to license the Content and the Customer Software to Media Two Hosting as set out in Clause 6.2.
10.2 All conditions, terms, representations and warranties that are not expressly stated in this Agreement, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, Media Two shall not be liable to the Customer as a result of any viruses introduced or passed on to the Customer.
11 INDEMNITY
The Customer agrees to indemnify and hold Media Two Hosting and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against Media Two Hosting arising out of any breach by the Customer of the terms of this Agreement or other liabilities arising out of or relating to the Website.
12 LIMITATION OF LIABILITY
12.2 The entire liability of Media Two to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.
12.3 In no event shall Media Two be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or Media Two Hosting had been made aware of the possibility of the Customer incurring such a loss.
13 TERM AND TERMINATION
13.1 This Agreement will become effective on the date the service is ordered and shall continue until terminated by either party in writing of its intention to terminate the Agreement.
13.2 Media Two Hosting shall have the right to terminate this Agreement with immediate effect by notice in writing to the Customer if the Customer fails to make any payment when it becomes due.
13.3 Either party may terminate this Agreement forthwith by notice in writing to the other if:
13.3.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
13.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
13.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
13.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
13.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
13.5 On termination all data held in the customers account will be deleted.
21 SCRIPTING
Media Two Hosting is not responsible for customer programming issues other than ensuring that programming languages such as Perl, PHP and ASP are installed and functioning on the web hosting system.
22 PRIVACY
To protect your privacy we will not distribute your details to third parties, unless required to do so by law.
23 DATA TRANSFER
23.1 Web hosting accounts include a certain amount of data transfer according to package chosen or applicable, if you exceed this amount in any one month your account will be deactivated until you have upgraded to an account that has more data transfer included, or until the next month period commences.
23.2 Web hosting accounts are prohibited from hosting file distribution websites (including but not limited to music, video and software), adult content orientated websites, hosting banners, graphics or cgi scripts for other websites, storing pages, files or data as a repository for other websites or personal computers, giving away web space under a domain, sub domain or directory.
24 SERVER USAGE
Should your account use more than 5% of the servers processing power and as a result have a detrimental effect on other customers we will discuss with you alternative solutions for your hosting requirements.
25 WEBSPACE USAGE
Unlimited web space is available for genuine web site content, content must be linked into web pages. Customers are prohibited from using the server as a file/backup repository. Customers are expected to employ good house keeping when maintaining their account.
26 MAIL BOXES
Mail boxes not accessed for 100 days or more will be deleted from the system.
Intellectual Property - explanation :
Read the Australian Copyright Council's Information sheet
This clause is there basically to protect us from companies taking our design and using it without us getting some kind of credit or return. The design of the site and it's copyright excludes the design of your company's corporate image and logo, which already exists. The default situation is the creator of a design holds the copyright to it unless agreed otherwise by the creator and the recipient of the design.
Industrial designs are what make an article attractive and appealing; hence, they add to the commercial value of a product and increase its marketability.
When an industrial design is protected, the owner - the person or entity that has created the design - is assured an exclusive right against unauthorised copying or imitation of the design by third parties. This helps to ensure a fair return on their investment of skill and time. It also benefits consumers and the public at large, by promoting fair competition and honest trade practices, encouraging creativity, and promoting more aesthetically attractive products.
By using a website design in flyers for example, so that the actual design of the overall site is used in the flyer (not the design of your corporate image, for which you hold the copyright) you would in effect be getting a flyer design (or the aesthetic design of the flyer) done for nothing.
A contractor NEEDS to own the copyright to code they write. If the contractor uses the same code (regenerative code) on another site, and they didn't own the copyrights, the first customer could sue the contractor.
The contractor would own the copyrights, but the customer would own a license to use their copy of the code any way they choose, unless you have a separate license agreement, which would regulate the terms and conditions of the license.
Of course designing sites - HTML, interface and graphics is not quite the same thing as writing software or scripts. In some cases with design the client can be better off with the designer retaining copyright because if there's an infraction they wouldn't begin to know what to do.
http://www.inc.com/articles/1998/01/10130.html